BVA9511539
DOCKET NO. 92-23 229 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. Johnston, Associate Counsel
INTRODUCTION
The veteran had active service from May 1946 to February
1947.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 1992 rating decision of
the Manila, Philippines, Department of Veterans Affairs (VA)
Regional Office (RO) which denied service connection for the
cause of the veteran's death. The case was previously
remanded in September 1994 for additional evidentiary
development. Service connection for the cause of the
veteran’s death was initially denied by the RO in January
1955. The RO has reopened the claim.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO erred in denying service
connection for the cause of the veteran's death. She points
out that the veteran died of ascites secondary to portal
cirrhosis of the liver which she contends was either incurred
during service or which was manifested to a compensable
degree within one year after the veteran was separated from
service.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West
1991), following review and consideration of all of the
evidence and material of record in the veteran's claims
folder, and for the following reasons and bases, it is the
decision of the Board that the evidence on the issues of
service connection for the cause of the veteran's death is in
relative equipoise.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained.
2. The veteran died in September 1950 and the cause of death
was certified as ascites.
3. The evidence on file shows that ascites, an accumulation
of fluid in the abdomen, occurred as the result of prior
onset of portal cirrhosis of the liver.
4. The evidence is in equipoise as to whether portal
cirrhosis of the liver had its onset during service.
5. At the time of the veteran's death he was not service
connected for any disabilities.
6. A plausible evidentiary basis for concluding that the
veteran's death was proximately related to portal cirrhosis
of the liver has been demonstrated.
CONCLUSIONS OF LAW
1. Portal cirrhosis of the liver was incurred in service.
38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303,
3.312 (1994).
2. Service-connected disability caused or contributed
substantially or materially to cause the veteran's death.
38 U.S.C.A. §§ 1310, 5107(a) (West 1991); 38 C.F.R. § 3.312
(1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant's claim is well grounded within the meaning of
38 U.S.C.A. § 5107(a) in that it is plausible. All of the
relevant facts have been developed and no further assistance
is necessary to comply with the duty to assist required by
law. Id.
The appellant is seeking to establish service connection for
the cause of the veteran's death. In order to establish this
the evidence must show that disability incurred in or
aggravated by service either caused or contributed
substantially or materially to cause death. For a service-
connected disability to be the cause of death, it must
singly, or with some other condition, be the immediate or
underlying cause of death, or it must be etiologically
related. For a service-connected disability to constitute a
contributory cause, it is not sufficient to show that it
causally shared in producing death but rather it must be
shown that there was a causal connection. 38 U.S.C.A.
§ 1310; 38 C.F.R. § 3.312.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty. 38 U.S.C.A. § 1110, 1131. Service
connection may also be established for cirrhosis of the liver
if manifested to a compensable degree within one year after
the veteran was separated from service. 38 U.S.C.A. §§ 1101,
1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. For the showing
of a chronic disease in service, there is required a
combination of manifestations sufficient to establish the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings. Continuity of symptomatology is required where the
condition is not shown to be chronic, and when chronicity in
service is not supported, continuity after discharge is
required to support the claim. 38 C.F.R. § 3.303(b).
Regulations also provide that service connection may be
granted for any disease diagnosed after discharge, when all
of the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d). Disability which is proximately due to
or the result of a service-connected disease or injury shall
be service connected and, if so established, will be
considered a part of the original condition. 38 C.F.R.
§ 3.310(a).
In determining whether service connection is warranted for a
disability, the VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107(b) (West 1991).
Additionally, any reasonable doubt regarding degree of
disability will be resolved in favor of the claimant.
38 C.F.R. § 4.3 (1994).
The service medical records, consisting of both an
examination for induction to and an examination for
separation from service, contain no notations of any physical
abnormalities relevant to the present case. The separation
examination report contains no notations of cirrhosis of the
liver. Service personnel records show that the veteran was
separated prior to the expiration of his term of service for
inadaptability in February 1947. Private medical records
from the Philippine Bureau of Hospitals indicate that the
veteran was admitted to a hospital in March 1949 with a
diagnosis of portal cirrhosis of the liver. There was a
three-month history of gradual enlargement of the abdomen
(ascites). Upon admission, paracentesis was performed and 4
liters of fluid were removed from the veteran's abdomen. A
fluoroscopic examination revealed that the lungs were
generally clear but both sides of the diaphragm were highly
elevated due to fluid in the abdominal cavity. The veteran
was hospitalized for portal cirrhosis until April 1949 and
apparently released thereafter. In September 1950, the
veteran died and the certificate of death listed the cause of
death as "acitis" (ascites).
In September 1954, D. S. Javier, M.D., signed an affidavit
certifying that the veteran had been his patient on
December 22 to 24, 1948. He certified that the veteran "had
already the beginning of ascites due to portal cirrhosis of
the liver at that time."
In January 1958, B. Murrillo, M.D., signed a sworn affidavit
indicating that he was the veteran's family physician and
that, in the middle of June 1947, he treated the veteran for
yellowish discoloration of the conjunctiva and skin,
abdominal pain (occasional), vomiting (occasional), pruritus,
and slight enlargement of the abdomen (ascites). He stated
that, "[i]n view of the above findings, I firmly believe that
the above-named symptoms, points more to a case of portal
cirrhosis."
In June 1958, M. Mondala, M.D., wrote that portal cirrhosis
was simply a category of cirrhosis of the liver. He also
wrote that complications occurring during the latter stages
of cirrhosis included ascites which was an accumulation of
water in the abdominal cavity.
In October 1958, three private physicians (Reys, Mondala, and
Murrillo) signed an affidavit attesting to the fact that
ascites could be caused by cirrhosis of the liver. They also
certified that death from ascites indicated that the decedent
may have been suffering from prior onset cirrhosis of the
liver, and certified that the veteran, who died due to
ascites, had cirrhosis of the liver.
In August 1992, [redacted] signed a sworn affidavit
indicating that he was a fellow service member and assigned
to the same unit as the veteran with the Philippine Scouts
and that the veteran often complained of stomach pain. In
1994, the appellant submitted three sworn statements of
individuals who claim to have known and personally observed
that the veteran was brought to the clinic of the late
Dr. B. Murrillo in June 1947 for abdominal pain.
In October 1994, E. Murrillo, M.D., wrote that he was a
medical doctor and the son of the late Dr. B. Murrillo. He
wrote that his father's medical records, including the
veteran’s treatment records, were no longer available, and he
vouched for his late father's honesty and integrity.
In consideration of all of the evidence of record but
especially all of the evidence submitted since the
appellant's claim for service connection for the cause of the
veteran's death was initially denied in 1958, the Board
concludes that the evidence tending to show that the veteran
had onset of portal cirrhosis during service or that this
disease became manifest to a compensable degree within one
year after his separation from service is in relative
equipoise. The evidence unquestionably shows that the
veteran was hospitalized with portal cirrhosis with advanced
ascites with a three-month history of gradual enlargement of
the abdomen in March 1949, approximately two years after he
was separated from service. The three-month history of
ascites was corroborated by the affidavit of Dr. Javier who
wrote that he treated the veteran for the onset of ascites
due to portal cirrhosis in December 1948. Other medical
affidavits on file indicate that ascites is clearly secondary
to portal cirrhosis and that the onset of ascites generally
occurs at the later stages of cirrhosis, i.e., a somewhat
lengthy period after cirrhosis as its initial onset.
The secondary nature and chronologically remote onset of
ascites due to cirrhosis of the liver is confirmed in the
Schedule for Rating Disabilities in that 38 C.F.R. § 4.114,
Diagnostic Code 7312 (1994), provides a 50 percent evaluation
for moderate cirrhosis with abdominal distention due to early
ascites, a 70 percent evaluation for severe cirrhosis with
ascites requiring infrequent tapping, and a 100 percent
evaluation for pronounced cirrhosis necessitating frequent
tapping of the abdominal cavity (emphasis added).
While the late Dr. Murrillo's January 1958 affidavit was
written 11 years subsequent to the described treatment and
while there are no medical records to corroborate
Dr. Murrillo's reported findings, that affidavit notes that
symptoms consistent with cirrhosis including slight
enlargement of the abdomen were found to exist only four
months after the veteran was separated from service. While
Dr. Murrillo apparently did not provide a contemporaneous
diagnosis, 11 years later he felt that these symptoms were
consistent with a case of portal cirrhosis.
Collectively, the evidence is in equipoise as to whether
cirrhosis of the liver had its onset during service.
38 U.S.C.A. § 5107(b). While cirrhosis was not noted during
service or within a year thereafter, the post-service medical
evidence provides a basis for concluding that it as likely as
not had its onset in service. Accordingly, the Board finds
that ascites causing the veteran's death was secondary to
earlier onset of portal cirrhosis of the liver, and that the
later was incurred during service and was the underlying
cause of death. Therefore, the appellant's claim for
service connection for the cause of the veteran's death must
be allowed. 38 U.S.C.A. §§ 1110, 1310, 5107(a)(b);
38 C.F.R. §§ 3.303, 3.312.
ORDER
Service connection for the cause of the veteran's death is
granted.
JANE E. SHARP
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.